Glossary

Glossary

Adversarial litigation

Adversarial litigation includes court and/or tribunal proceedings, arbitrations and foreign litigation. However, documents or communications created or sent in relation to inquisitorial or investigative proceedings (including criminal investigations short of prosecution or internal grievance procedures) do not attract litigation privilege.

Advising the firm where you work

Advising the firm where you work: Occasionally as a private practice lawyer, you may be advising your own Firm on a matter which falls within your area of practice. For example, if you are an employment lawyer, you may be called upon to advise your Firm on internal employment matters (where doing so is compatible with your obligations to the Firm). In such circumstances, your advice to your firm may be legally privileged, provided that it is clearly identified that you are acting in your capacity as a legal adviser and the Firm as an entity is your client for these purposes. You should identify who your internal instructing client or client group is on behalf of the Firm (for example a particular individual like the General Counsel or perhaps a group of individuals like the management or executive committee) in the same way that you would if you were advising an external client. Similarly, it is prudent to document the arrangement and client group and keep this under review as necessary.

Client or client group

Legal advice privilege will only apply to your communications with those individuals who fall within the narrowly construed definition of the “client” see Three Rivers District Council and Others v Governor and Company of the Bank of England (No 5) [2003] EWCA Civ 474.

If your client is a natural person then they are usually easily identifiable. However, if your client is a legal entity, you will often need to identify which persons fall within the instructing “client group”. The “client group” will consist only of those individuals who are authorised to seek and receive legal advice from you as the lawyer.

If you are a lawyer in private practice it is advisable to give some thought to how best to define the client group at the outset of a matter having regard to the requirements of the particular project or matter and to the circumstances. If appropriate the client group designation should be recorded (possibly in a retainer letter), reviewed and frequently updated as a particular matter develops. 

Note however that the client or client group may be entitled to share advice which is subject to legal advice privilege with other individuals within a business or organisation without privilege being lost, at least if that sharing is done on an expressly confidential basis. Difficulty can arise when there are communications with persons outside of the client group for the purposes of preparing the legal advice to give to the client group, e.g. making inquiries of potential witnesses. Communications with those persons outside the client group are not privileged (but may be subject to litigation privilege instead, in appropriate circumstances).

A particular issue may arise if the client is a Limited Liability Partnership (LLP) with a membership of LLP members. In the absence of an express contractual provision to the contrary, all the individual LLP members will arguably have a right to access the legal advice and the LLP will not be able to withhold that advice from any of them on the basis of legal advice privilege. The exception is where the advice has been sought specifically by the LLP in connection with a dispute between the LLP and an LLP member; in these circumstances the LLP may be able to withhold the advice from that individual LLP member on the basis of legal advice privilege. However, as this exception is not settled in case law, a possible strategy is for a designated team of senior members of the LLP to put the retainer with the lawyer in their own names to avoid a right of access by an LLP member.

Communication or Document

Any information whether oral or written (which satisfies the other criteria for privilege to be accorded as set out later on in the tool) may qualify.

The information may for example, be in a communication, like an email or in a stand-alone document.

For private practice lawyers, this may include a variety of communications and documents produced for a client which contains legal advice, for example legal advice memos, comments on draft correspondence or emails containing legal advice.

For in-house lawyers, relevant categories of documents which may potentially contain privileged information include but are not limited to the following:

(a) Sections of Board Minutes recording legal advice.
(b) Draft script produced by the in-house lawyer setting out how to run a performance management meeting.
(c) Legal memos or advice emails to HR regarding disciplinaries and grievances.
(d) Investigation report and emails with management in respect of a matter giving rise to actual or contemplated litigation.
(e) Advice in relation to the legal risks of the business entering into a share purchase agreement (although any due diligence on the target company which is not created for the purpose of seeking legal advice will not be privileged).
(f) Email from an authorised contract manager requesting legal advice on the proposed terms of a customer contract.

Please note that the fact that a document is contained on this list does not indicate that they will in fact be privileged. You should follow the remaining steps in the decision tree and apply the other relevant criteria to consider whether the document may in fact be privileged.

Also note that attaching a pre-existing document to a communication with a lawyer (even if that communication seeks legal advice) will not make the pre-existing attachment privileged, if it was not previously – see Financial Reporting Council Ltd v Sports Direct International plc [2018] EWHC 2284 (Ch). 

Confidential

The communication or document must be confidential in nature and retain its confidentiality for privilege to attach. It may lack or lose confidentiality in a number of circumstances, for example:

(a) Documents already within the public domain;
(b) if the document is a transcript of open court proceedings;
(c) Disclosing the document in litigation to an opponent in legal proceedings (although particular rules will be applied by the courts here and legal advice should be sought);
(d) Circulating or forwarding to another person beyond the “client group” in the case of legal advice privilege (see client group explanation). This may particularly be the case where there is no legal justification for doing so or the disclosure is to the world at large (that is to a large number of third parties). An example of legal justification for forwarding a privileged document might be where it is being shared with a select group of people (for example the Board of Directors or Senior Leadership Committee) on an agreed strictly limited confidential basis or shared on a common interest basis. However creators and recipients of privileged material should be warned against forwarding it to others without careful thought and putting appropriate measures in place if necessary (for example a confidentiality agreement).
(e) Accidental disclosure – if you have inadvertently sent a privileged document to unintended recipients then depending on the circumstances, including the identity of the recipients and whether it can be considered to be in the public domain, it may (albeit will not inevitably) lose its confidentiality and thereby its privileged status. Legal advice should be obtained on whether privilege has been undermined and steps should be taken to recall, recover or require deletion of the document. One area to consider is sending documents intended for an individual, but using a professional email address. Many employment or partnership contracts and/or staff handbooks expressly authorise surveillance of email by an employer. In such circumstances, a professional email account is not confidential to the individual and since confidentiality is the basis of all forms of privilege, privilege is unlikely to apply to the documents sent by email, as against the employer.
(f) Leaked document – if the document has been leaked by a third party on a publicly accessible forum, it may lose confidentiality and thereby its privileged status. However, much will depend on the circumstances including the likelihood and degree of actual access by the public and the extent to which the information might be readily understood by those without specialist skill or knowledge. Specialist legal advice should be taken and if possible steps should be taken to recall, recover or require deletion of the document.

Designated and authorised internal client

Legal advice privilege will not apply to your communications with everyone in the business who seeks legal advice from you as an in-house lawyer. It will likely only apply to your communications with those staff within the business who fall within the narrowly construed definition of the “client”- see Three Rivers District Council and Others v Governor and Company of the Bank of England (No 5) [2003] EWCA Civ 474. Accordingly, to benefit from legal advice privilege the staff member or team should be designated or authorised to request and receive legal advice from you (in your capacity as a lawyer) on behalf of the business. This will often but not always be C-suite executives, senior management, the HR function, contract managers or key individuals in a particular business line in relation to a specific project or matter.

It is likely that seeking to demarcate a wide or general internal client group to encompass whole departments and/or all seniority levels and categories of staff, units or the whole business would be rejected by the courts in light of Three Rivers (No 5). It is therefore advisable to give some thought to how best to structure the internal client team at the outset of a matter having regard to the requirements of the particular project or matter and to the circumstances. If appropriate the internal client group designation should be recorded, reviewed and frequently updated as a particular matter develops.  

Dominant purpose

To sustain a claim to legal advice privilege, the relevant document or communication must be created or sent for the dominant purpose of obtaining or receiving legal advice – see Civil Aviation Authority v R Jet2.com Ltd [2020] EWCA Civ 35.

If the sole purpose of the document or communication is to obtain or receive legal advice, then the ‘dominant purpose’ test will be satisfied.

If, however, a document or communication has been created or sent for a dual or multiple purpose(s) (for example an internal investigation report for remedial purposes as well as to ascertain rights and liabilities in actual or contemplated litigation) it will be necessary to show that ‘giving or obtaining’ legal advice was the purpose for its creation. A secondary, or even equal, purpose will not be sufficient. Whether the ‘dominant purpose’ test is met is an issue of fact that the courts will consider from an objective standpoint.

Difficulties may arise when ascertaining the dominant purpose of multi-addressee emails sent simultaneously to various individuals for their advice or comments, including a lawyer for their input.

If the dominant purpose is to obtain the non-legal or commercial views of the non-lawyer addressees, then it will not be privileged, even if a subsidiary purpose is simultaneously to obtain legal advice from the lawyer addressee(s).

You may wish to analyse the email by considering them as separate communications to each recipient and asking whether if the email were sent to the lawyer alone, it would have been privileged. If the answer is no, then it is unlikely that the same email to the other recipients will be privileged. If the answer is yes, then the question arises as to whether the email to the non-lawyers is privileged, because in substance its dominant purpose is to settle instructions to the lawyer (as between the non-lawyers) or to disseminate legal advice.

It is also worth bearing in mind that if the legal and non-legal advice in the document is sufficiently separate, it is usually possible to redact the genuinely legally privileged parts of the document (see GE Capital Group Ltd v Bankers Trust Co [1995] 1 WLR 172).

Additionally, if the legal and non-legal parts of the document are so intermingled that distinguishing the two and severance are impossible for practical purposes, then the courts have indicated that they may accept that the dominant purpose of the whole document is the giving or obtaining of legal advice (see Civil Aviation Authority v R Jet2.com Ltd [2020] EWCA Civ 35).

For the dominant purpose of obtaining advice or information in order to conduct litigation

Where a document or communication has been created or sent for a dual or multiple purpose(s) (for example an internal investigation report commissioned for remedial purposes as well as to ascertain the client’s rights and liabilities in actual or contemplated litigation) it will be necessary to show that the litigation was the ‘dominant’ purpose for its creation.

A secondary, or even equal, purpose will not be sufficient. Whether the ‘dominant purpose’ test is met is an issue of fact that the courts will consider on an objective basis.

Purely commercial discussions of settlement options or strategy will be unlikely to be protected by litigation privilege unless they are for the dominant purpose of obtaining legal advice or information in order to conduct (which would include advice on whether to litigate or settle) that litigation – See WH Holding Ltd and another v E20 Stadium LLP [2018] EWCA Civ 2652.

Foreign lawyer and Acting in your professional capacity in providing legal advice

To benefit from privilege recognition under English law, foreign lawyers are not required to show compliance with the domestic national standards, regulations or registration for lawyers in the relevant jurisdiction.

The primary requirement for a foreign lawyer in this context is that you should be acting in your professional capacity in connection with the provision of legal advice to the business (if you are an in-house lawyer) or client (if you are a private practice lawyer). See PJSC Tatneft v Bogolyubov and others [2020] EWHC 2437 (Comm)

In-house lawyer

If you are an in-house lawyer your designated ‘internal clients’ can assert privilege over their communications with or documents created for you in which they are seeking or receiving legal advice (as long as the other requirements for privilege are met) – see Alfred Crompton Amusement Machines Ltd v Customs & Excise Comrs (No 2) [1972] 2 QB 102.

The exception to this position is if you are providing advice to the business in respect of an EU commission competition investigation into competition breaches. In this circumstance, your advice to the business as an in-house lawyer would not be covered by privilege – see Akzo Nobel Chemicals Limited v European Commission [Case C-550/07].

Lawyer qualified to practice in England & Wales

If you are a member of the legal profession in England and Wales you qualify for legal professional privilege purposes (i.e. you are a barrister, solicitor or Chartered Legal Executive.) By statutory extension privilege protection has also been granted to patent attorneys, trade mark agents, licensed conveyancers and persons authorised to provide certain legal services by an approved regulator under Section 190 of the Legal Services Act 2007 (for example, but not limited to, The Institute of Legal Executives, the Association of Law Costs Draftsmen  and The Chartered Institute of Patent Attorneys) – see R (Prudential PLC and another) v Special Commissioner of Income Tax and another [2018] UKSC1. Legal advice privilege also extends to non-legally qualified personnel (such as trainees and paralegals), provided they have acted under the supervision of a qualified lawyer.

The law is unclear on whether it is necessary to hold a full practising certificate. It is therefore prudent to be cautious and ensure your practising certificate is up to date for the purposes of the client being able to claim privilege over your advice. 

Legal advice in a relevant legal context

Legal advice is not confined to formalistic advice on the law. It is sufficient for it to be advice on what should prudently or sensibly be done in a relevant legal context – see Three Rivers District Council and others v Bank of England [2004] UKHL 48).

This would include the rights, liabilities, obligations or remedies of the client, and likely presentational, strategic and risk management advice in respect of the foregoing. Essentially, the test will be whether you are being consulted as a lawyer for your legal skills. However, if the advice relates to commercial business matters (e.g. investment policy, finance policy and administrative or other business matters) it may lack a relevant legal context.

Privilege can apply to documents that disclose the substance (nature and content) of the lawyer-client communications (for example the part of a company’s board minutes that records legal advice given by an in-house or external lawyer). However, note that a document will also not be privileged simply because it takes account of legal advice. It must expressly communicate or make clear in an obvious manner the substance of the legal advice.

It is not necessary for each communication to contain an express request for advice. If there is a continuum of communication between solicitor and client aimed at keeping both informed, privilege is likely to attach. See Balabel v Air India [1988] WLR 1036.

Litigation privilege

Litigation privilege is a substantive right recognised in England and Wales that allows a client to withhold disclosure to a court and third parties of any written or oral information protected by that privilege.

It attaches to confidential communications or documents that are between or created by a client and/or a lawyer and/or a third party where: (i) litigation is in progress, pending or in contemplation; (ii) the communications were made for the sole or dominant purpose of conducting that litigation; and (iii) the litigation is adversarial, not investigative or inquisitorial.

Reasonably contemplated

Litigation will be regarded as being reasonably contemplated when there is a real likelihood rather than a mere possibility of litigation. A distinct possibility that someone might make a claim sooner or later, or a general apprehension of litigation will not suffice. Although this does not mean that the chance of litigation needs to be more than 50%.

To satisfy a court that litigation was reasonably contemplated, you will likely need to establish that some event has occurred, or some circumstance subsists upon which it is more likely than not that the client will sue or be sued (as an identifiable Claimant or Defendant as relevant) in respect of a particular cause of action and remedy and that there is some justification for this belief.

For example, in United States of America v Philip Morris Inc [2004] EWCA Civ 330 the court held that a solicitor’s advice to a tobacco company in relation to creating a document management policy was not litigation privileged. Although the advice was sought because the company was apprehensive someone might bring a smoking related illness claim sooner or later due to (i) the growing volume of tobacco litigation in the United States and (ii) the fact that claims were being made against its sister company in the US, the court highlighted that the company itself had not been sued in over 15 years and it had not received any letters before action or other precursors of contentious litigation.

It may be prudent to document that you consider litigation is reasonably in contemplation prior to creating or sending the relevant document or communication. Whilst such a record will not be determinative, it may be indicative for evidential purposes.

Third party

A third party can be any person who is not the client or lawyer. For example, accountants, tax advisers, medical experts, consultants, employees or other witnesses.

Unless waived

As the right to privilege belongs to the client, only the client is entitled to waive privilege.

Waiver may arise in the following (non-exhaustive) ways:

  • (a) Loss of confidentiality (see Confidential explanation).
  • (b) Intentionally (for example, by placing privileged material before the court). This could also result in collateral waiver of other related documents and should only be done where necessary after careful consideration.
  • (c) Where the client waives privilege unintentionally by, for example, bringing legal proceedings against their lawyer, thereby waiving privilege to the extent necessary to enable the court to adjudicate fairly and effectively (Farm Assist Ltd v Secretary of State for Environment Food and Rural Affairs [2008] EWHC 3079 (TCC)).

A party who elects to waive privilege may be obliged to disclose other related documents so as to prevent the court and/ or their opponent from being given only a partial picture. This is known as collateral waiver.